Reconceptualising Constitutional Identity: The Case of Hungary
Kriszta Kovács – 2023
The chapter is structured as follows. The first section opens with an analytical account of the three pillars of the FL’s ethnocultural identity: non-inclusive religious considerations, historical myths, and the mythical concept of the ‘nation’. This section demonstrates that the FL has a relatively straightforward religious profile; it portrays Hungary as a Christian nation. It also shows that the FL imposes a specific historical narrative based on resentful nationalism, which constitutes an integral part of the national identity and that it invokes the mythical concept of ‘the nation’ instead of ‘the people’ as the constitution’s originator. The second section outlines the judicial interpretation of identity and demonstrates that the ethnocultural national identity entrenched in the FL determines constitutional court decisions. In 2016, the HCC confirmed that Hungary’s identity is equivalent to the FL’s identity. Since then, a range of decisions – on the EU refugee relocation scheme, asylum and a criminal provision aimed at NGOs assisting asylum seekers – have reflected this identity’s exclusionary aspect. Finally, the third section offers a way to reconstruct constitutional identity supported by three key pillars. The first pillar can be built on the institutional values of the democratic Hungary: representative government, consensual parliamentary democracy, and meaningful constitutional review conducted by an independent judiciary. The universal constitutional principles, as the HCC’s transformative decisions interpreted them, can constitute the second pillar. The third pillar can encompass EU laws’ crucial achievements as they were implemented in domestic law. Section IV of this chapter concludes.